Confrontation Invitation: Court Of Appeals Of Ohio Finds Invited Error In Response To Confrontation Clause Appeal

The recent opinion of the Court of Appeals of Ohio, Ninth District in State v. Moorer, 2009 WL 818945 (Ohio App. 9 Dist. 2009), is an interesting opinion that involves statements falling under both Davis v. Washington, 547 U.S. 813 (2004),  and Hammon v. Indiana.  The problem for Moorer, however, was that while the admission of statements falling under Hammon v. Indiana ordinarily would have violated his rights under the Confrontation Clause, the Court of Appeals instead found that they fell under the invited error doctrine.  

In  Moorer, the facts adduced at trial established that Lawrence H. Moorer came home drunk from a funeral with lipstick on his collar. When his girlfriend, Carolyn Washington, got angry and tried to leave, Moorer attacked her. Washington eventually escaped their apartment and went across the street to a neighbor's to call 911. The Grand Jury indicted Mr. Moorer for kidnapping and domestic violence, and a jury convicted him of domestic violence.

One of Moorer's grounds for appeal was that the admission of Washington's 911 call violated his rights under the Confrontation Clause of the Sixth Amendment.  The Court of Appeals disagreed, noting the following about the 911 call:

Regarding the 911 call in this case, the dispatcher first asked about the location of the emergency. Ms. Washington answered "1243 Roslyn." The dispatcher then asked what was the emergency, and Ms. Washington answered that her "boyfriend is violent right now." She said that Mr. Moorer was choking her and punching her in her pacemaker, that he would not let her out of the house, and that "he is fighting with the neighbor right now." When the dispatcher asked if he had done "all that to [her]," Ms. Washington responded with a distressed "yes." The dispatcher then asked Ms. Washington to identify herself and her boyfriend, as well as to describe what her boyfriend was wearing.  

Based upon these facts, the Court of Appeals was able to rely upon the Supreme Court's opinion in Davis v. Washington, 547 U.S. 813 (2004), which found that "[s]tatements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency."  Thus, because Washington's statements were non-testimonial, they could not be violative of the Confrontation Clause pursuant to Crawford v. Washington, 541 U.S. 36 (2004). 

However, as in Hammon v. Indiana, Washington also made statements to the responding officers after the emergency was over.  The problem for Moorer, however, was that testimony regarding these statements was rendered in response to questions by his own attorney, meaning that they were not violative of the Confrontation Clause based upon the invited error doctrine. In other words, because Moorer's attorney invited the trial court to commit Constitutional error by asking the subject questions, Moorer could not claim on appeal that his rights under the Confrontation Clause were violated. 

-CM